Negative references and discrimination

04 January 2016

Ms Pnaiser worked for Coventry City Council. She was disabled and had had quite a lot of absence. When she was made redundant, she negotiated a settlement agreement that contained an agreed reference...

Pnaiser v NHS England and Coventry City Council

Ms Pnaiser worked for Coventry City Council. She was disabled and had had quite a lot of absence. When she was made redundant, she negotiated a settlement agreement that contained an agreed reference.

She was then offered a job with NHS England. But that offer was withdrawn after a conversation between her recruiting manager and the Council. There was some debate later on about what exactly the Council officer said during that phone call and how, but the gist was an implication that Ms Pnaiser might struggle to cope with the new role. Crucially, Ms Pnaiser’s sickness absence was mentioned.

She alleged disability discrimination against the Council and NHS England, winning on appeal. The Employment Appeal Tribunal said that the tribunal had taken the wrong approach. As the Council’s comments about unsuitability were at least partly because of Ms Pnaiser’s absence (which was a consequence of her disability), it was for the Council and NHS England to show that the sickness absence played no part in the reasons Ms Pnaiser was said to be unsuitable for the role, and in the withdrawal of the job offer.

The big lesson here for employers is: stick to the agreed reference. It’s always best to agree a reference that is as full and accurate as you can make it, and don’t depart from it. And if you are the potential employer, you will need to carefully judge a situation in which you’ve been given more information about a job candidate than their agreed reference reveals. Weigh up the discriminatory implications of acting on that information, and the consequences of taking on an employee who you have discovered may not be up to the job.


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